Centre for Addiction and Mental Health v. Ontario, 2012 ONCA 342

In Centre for Addiction and Mental Health v. Ontario, the ONCA considered the interpretation of ‘consent’ in the context of s. 672.62 of the Criminal Code, which provides that – where an accused has been found unfit to stand trial and has been ordered to undergo treatment according to s. 672.58 – the consent of the person in charge of the hospital in question is required. Justice Blair overturned the hearing judge on the question of whether the consent requirement had been met in the circumstances – it had not – and further considered the constitutionality of s. 672.62, an issue before the court for the first time on appeal. Blair J.A. held that the s. 672.62 requirement complies with society’s notions of procedural fairness and is not unconstitutionally vague or arbitrary.

Mr. Brian Conception, accused of sexual assault, was found mentally unfit to stand trial. Justice Mary Hogan of the Toronto Mental Disorder Court issued a treatment order requiring Mr. Conception to submit “forthwith” to 60-days’ anti-psychotic treatment at Oak Ridge, a facility affiliated with the Centre for Addiction and Mental Health (CAMH), notwithstanding the hospital’s declared inability to accommodate him until six days later. CAMH appealed the decision, arguing it had not given the requisite consent.  

The decision clarifies the law on what Blair J.A. called “a recurring theme” in Ontario courts: the tension between judges’ desire to avoid interim jail time for mentally unfit accused on their way treatment, and the hospitals’ refusal to give consent due to bed shortages. Recognizing the hearing judge’s legitimate exasperation with a system suffering a scarcity of resources, Blair J.A. allowed the appeal. He accepted the hospital authorities’ power to determine priority of treatment in an environment where, among those patients waiting for a bed, there might well be others like Mr. Conception. Noting that “[s. 672.58] orders are… not intended to be… for the medical benefit of the unfit accused in the broad sense”, Blair J.A. held that the s. 672.62 consent requirement does not offend principles of fundamental justice. The decision makes the point that policy decisions concerning the allocation of psychiatric hospital resources are beyond the competence of the courts.

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Radostina Pavlova

Tony Drake

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R v Pham, 2012 ABCA 203

In this case, the Alberta Court of Appeal considered whether minor variations in a sentence should be granted for convicted persons with a prior criminal record where the accused may be subject to proceedings under the Immigration and Refugee Protection Act  (“IRPA”).  The Court held that where persons have a prior criminal record, minor variations of a sentence due to considerations under the IRPA do not apply.

In this case, the appellant had been earlier convicted of two drug offences. He was found guilty of unlawfully producing and possessing marijuana for the purposes of trafficking and was sentenced to a prison term lasting two years. He appealed on the basis that a sentence of two years had the unintended consequence of losing his right to appeal a deportation order under the IRPA and asked for a sentence variation to two years less a day. The prevailing practice has been to reduce the sentence of an appellant in cases where (1) the requested reduction is minimal and therefore will not render the sentence unfit, and (2) maintaining the original sentence carries with it unintended or collateral consequences. This approach has been fairly consistent across the country.

The Alberta Court of Appeal held that even minor variations should not be granted in cases where the appellant has a previous criminal record. The majority states, “[I]t would be a strange and unfortunate legal system wherein a non-citizen could expect to receive a lesser sentence than a citizen for the same crime. No such distinction should be countenanced.” In dissent, Justice Martin would have allowed the appeal based on the Crown's willingness to concede to a sentence of two years less a day (based on the prevailing practice).

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Brandon Walker

Mary Phan

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Association of Justice Counsel v. Attorney General of Canada, 2012 ONCA 530

The Ontario Court of Appeal considered whether the Expenditure Restraint Act ("ERA") infringed on the Association of Justice Counsel’s (“AJC”) s.2(d) Charter rights. This is the first case under the ERA to reach a Court of Appeal.  The Court of Appeal held that AJC had failed to show that the ERA infringed on their s. 2(d) right to engage in a meaningful process of collective bargaining.

The AJC alleged that the ERA rendered their right to collectively bargain on salary under s. 2(d) of the Charter with the Treasury Board Secretariat ("TBS") useless between the years of 2006 - 2011. The application judge found infringement of the AJC’s s.2(d) rights but upheld the ERA under s.1 of the Charter. The Attorney General appealed the application judge’s holding that the ERA infringed s.2(d), and the AJC cross-appealed that the provisions were justified under s.1. The court applied the "effectively impossible" test outlined in Fraser, which states that legislation violates s. 2(d) if it renders the pursuit of collective bargaining goals "effectively impossible." The court found that AJC's claim did not satisfy the "effectively impossible" test. Relying on Fraser, the court held that s. 2(d) guarantees a process of collective bargaining but not necessarily a result. Further, as stated in Fraser, s. 2(d) only protects the right to collective bargaining in the minimal sense of good faith. Applying the Fraser test, the court found that the AJC had engaged in a meaningful process of collective bargaining over a two-year period with TBS prior to the enactment of the ERA. During that process, the Court found that TBS had considered the demands of AJC in good faith. Therefore, the court held that AJC had failed to show that the ERA infringed on their s. 2(d) right to engage in a meaningful process of collective bargaining.

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Haran Viswanathan

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Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 BCCA 193

This case deals with an action brought by the Chief of the Kwicksutaineuk/Ah-Kwa-Mish First Nation and his attempt to have the action certified as a class action with the class defined as “all aboriginal collectives who have or assert constitutionally protected aboriginal and/or treaty rights to fish wild salmon for food, social, and ceremonial purposes within the Broughton Archipelago and the rivers that drain into the Broughton Archipelago on behalf of himself and other Aboriginal collectives who have rights to fish in the Broughton Archipelago.” The issue in this appeal is whether the certified description for the plaintiff class is statutorily permissible. The British Columbia Court of Appeal holds that not only is the class not properly defined, but that there is no acceptable definition which the Court could substitute for the one used by the chambers judge.

The reasons the court gives for holding that the class definition does not meet the legislative criteria are to do with lack of legal capacity of the group as defined and lack of known objective criteria by which a collective could identify its membership in the class. In terms of legal capacity, the Court points out that an unincorporated association does not have to capacity to sue or be sued, unless legislation specifies otherwise. The Class Proceedings Act (“CPA”) does not create a substantive right to litigate and so a collective that cannot act as an independent plaintiff cannot be made a capable plaintiff through identification and inclusion in a class proceeding. The court confirms that a Band registered under the Indian Act does have legal capacity, but is not necessarily the proper entity to assert an Aboriginal right. The Court declines to decide in general whether an Aboriginal collective has legal capacity, but does hold that in this case, the “aboriginal collectives” designated as class members do not have legal capacity.

With respect to the objectivity criteria, the Court points out that in an Aboriginal rights claim the identity of the rights holder is integral to the analysis. In this case, this identity is also integral to part of the class definition. The chambers judge identified several Bands to be included in the class based on ethnographic material and the Court points out that performing this sort of in-depth analysis to identify class members conflicts with the CPA goals of judicial economy and access to justice. This Court cites the chambers judge's analysis and reasons as proof that the class definition does not provide clear and objective criteria. Furthermore, the circularity in defining members of the class as those who have the right to fish in an action which will partly determine the question of their right to fish would further complicate the matter.

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Kiran Arora

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Temoin v Martin, 2012 BCCA 250

In this case, the British Columbia Court of Appeal considered the issue of whether the Supreme Court of British Columbia has the power to order a psychiatric examination of a person who appears to be incapable of managing his or her own affairs when the person in question will not voluntarily undergo examination. The Court of Appeal agreed with the Supreme Court judgment that the court does in fact have the power to order an assessment under its “parens patriae jurisdiction”, which gives the court control over vulnerable persons incapable of protecting themselves. However, the court stressed that the presumption of mental fitness under the Patients Property Act remains intact and the court must only order medical assessments in exceptional circumstances. 

The plaintiff, Lynne Temoin, had concerns that her father, Llewellyn Martin, was unfit to manage his finances or create a will due to dementia and sought an order declaring that he was incapable of managing his own affairs. A psychiatric examination of Mr. Martin confirmed that he did not have the capacity to make a will but did not assess his ability to manage his own affairs. As Mr. Martin refused to undergo such an assessment, the court was unable to make a declaration of incapacity under the Patients Property Act, which presumes a patient fit to manage his affairs unless two medical examinations provide evidence to the contrary. Justice Neilsen held that the Act contains a legislative gap regarding the court’s ability to order a patient to undergo psychiatric examination and thus looked to the legislature’s intent to determine the proper course of action. He reasoned that the purpose of the Act is to protect the autonomy of capable individuals by ensuring a rigorous protocol for declaring a patient unfit to manage his or her own affairs. However, he maintained that the Act does not adequately protect those mentally incapable individuals who refuse to undergo examination or do not have access to a physician. In these circumstances, the Act fails to protect the autonomy and wellbeing of these patients and thus falls out of line with its legislative objectives. The court held that in these exceptional circumstances, a party may request a court-ordered psychiatric examination of the individual in question. However, the moving party must meet a high evidentiary threshold to rebut the Patients Property Act presumption of fitness. Furthermore, the court stressed that its parens patriae power must be exercised very cautiously in order to maintain the Act’s objective of protecting free choice. Ultimately, the court concluded that Ms. Temoin had not discharged this burden of proof and declined to order Mr. Martin to undergo a medical examination.

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Maeve Clougherty

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R v Nickel, 2012 ABCA 158

This was a successful Crown appeal of the sentence given to an offender convicted of 
aggravated assault and failure to provide necessaries of life.  The charges stemmed 
from an incident where the defendant placed the feet of his nine-month-old 
daughter in recently boiled water and caused third degree burns. The sentencing 
judge, following R v Evans (1996 182 AR 21), categorized the defendant as an
unskilled parent who failed to appreciate the potential consequences and sentenced
 him accordingly. The ABCA finds that the sentencing judge erred and substitutes its own assessment of a fit sentence. Rejecting the Evans framework, the court outlines a process of analysis of moral culpability as relevant to sentencing.

In rejecting the framework provided in Evans, the court refrains from articulating another fixed framework for
sentencing in “child abuse” cases. Instead, they outline a process of analysis
 beginning with an assessment of the risk and materialization of harm to the child,
 and the level of the offender’s culpability. Evans suggested differentiation between 
intended and foreseeable harm and this judgment echoes that, but as a starting 
place for consideration rather than a rigid divide. Other considerations including 
the offender’s personal circumstances should be relevant, but this analysis removes
 Evans’ heavy emphasis on the offender.



Justices Martin and O’Brien dissented on the sentence imposed in this particular
case, but not on the rejection of Evans and the proposed new set of principles.

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Sarah Rankin
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Bank of Montreal v. Peri Formwork Systems Inc., 2012 BCCA 252

In Bank of Montreal v. Peri Formwork Systems Inc., the British Columbia Court of Appeal was required to rule on two issues raised in an application brought by the appellants, Peri Formwork Systems Inc.: 1) settling the terms of a court order and 2) special costs in cases of a complicated appeal. The BCCA ordered that the appellant builder’s lien claim be restored to priority over the Bank of Montreal Receiver’s Borrowing Charge and over all security to which the Receiver’s Borrowing Charge has priority. Secondly, the Court ruled that it has the authority to award increased costs in accordance with Rule 60 of the Court of Appeal Rules when there is a significant discrepancy between the legal fees incurred as a result of a long and complicated legal process and the amount recoverable through an award of ordinary costs. Although the normal rule for awarding increased costs requires proof of not merely a significant discrepancy between costs incurred and ordinary costs but also an additional factor such as party conduct, the Court ruled that departure from the normal rule was merited in the interests of justice. 

Peri Formwork Systems Inc., a builder company, obtained a lien against title to Coastal Village’s property and was granted priority on this lien over all others, including a Bank of Montreal Receiver’s Borrowing Charge. As a result of an error in statutory interpretation by Rice, J. (Supreme Court of British Columbia), the parties were required to seek further appeals to determine who was entitled to lien priority. The lengthy and complicated appeals process resulted in Peri Formwork Systems incurring substantial costs to settle the terms of the court order. The BCCA determined that Rule 60 of the Court of Appeal Rules, a rule allowing the Court to order increased costs to avoid creating an “unjust result”, applies in the case of Peri Form. The Court ruled that Peri Form faced many challenges in bringing its case and application, including the application to settle the terms of the order, and that a failure to order increased costs would not be in the interests of justice. A refusal to order additional costs in complicated cases would act to prevent the hearing of important legal issues. The Court ordered increased costs for the appeal process and costs at Scale C in the court below payable by the Bank of Montreal to the appellants; the Court also ruled that the appellants were only entitled to one set of costs and therefore could not collect costs from the Receiver (Brown Group Inc.). 

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Elizabeth Severinovskaya 

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